Expert opinions are necessary
in special education. No matter how knowledgeable they are about their
disabled children, parents should rely on the opinions of trained professionals
to help them make informed decisions about therapeutic and educational
interventions. School districts will also rely on these professionals
to help them design and deliver specialized education. All parties must
recognize the important roles played by these professionals.

Who
is an "expert"?

Legally an expert is any person who "by
knowledge, skill, experience, training or education" possesses
"scientific, technical, or other specialized knowledge [that] will
assist the trier of fact to understand the evidence or to determine
a fact in issue . . ." Fed.R.Evid. 702. The Individuals with Disabilities
Education Act (hereinafter "IDEA"), 20 U.S.C §1414 (d)(1)(B)(vi)
allows parents to consult with experts and include experts on their
child's Individualized Education Program (hereinafter "IEP")
team:

The term 'individualized education program team' or 'IEP team; means
a group of individuals composed of -- . . . at the discretion of the
parent or the agency, other individuals who have knowledge or special
expertise regarding the child, including related services personnel.
. .

Experts can offer opinions based upon
their personal observations and/or testing of the child, as well as
opinions they may have based solely upon their review of the child's
records. The most common experts at IEP meetings are nurses, physicians,
psychologists, social workers, and therapists.

Experts may work for the parents or the
school district. While the IEP team must consider the opinions of any
expert procured by the parents (20 U.S.C. §1414 (d)(3)(A)(i)), the
team is not bound by these opinions.

If a district decides on a course of
action that is at odds with the recommendations of the expert retained
by the parents, the parents are entitled to "prior written notice,"
a written explanation from the district that specifically states:

a description of
the action proposed or refused by the agency;

an explanation of
why the agency proposes or refuses to take the action;

a description of
any other options that the agency considered and the reasons why those
options were rejected;

a description of
each evaluation procedure, test, record, or report the agency used
as a basis for the proposed or refused action;

a description of
any other factors that are relevant to the agency's proposal or refusal;

a statement that
the parents of a child with a disability have protection under the
procedural safeguards of this part and, if this notice is not an initial
referral for evaluation, the means by which a copy of a description
of the procedural safeguards can be obtained; and

sources for parents
to contact to obtain assistance in understanding the provisions of
this part. 20 U.S.C. §1415 (b)(3) and (c).

Parents may request a Due Process Hearing
and ask an impartial Hearing Officer to determine whether the district
was correct in disregarding their expert's advice. An articulate, well-reasoned
expert opinion that is supported by objective data is extraordinarily
beneficial to an advocate who is attempting to obtain a particular action
or prevent an action by a school district on behalf of an eligible child.

Why
Do Parents Need Experts?

Reason
I: To obtain a clear medical diagnosis of the child

The main reason parents turn to experts
is for an accurate diagnosis of their child's disability. Parents cannot
get appropriate help for their disabled child unless they fully understand
the nature and extent of the child's disability.

Some individuals refer to this diagnosis
as a "label." This phrase is inaccurate. A medical diagnosis
must be reached according to best medical practice, including accepted
clinical tests and observations by a licensed medical professional.
IDEA allows for a multitude of medical diagnoses to obtain eligibility.
A solid medical diagnosis of the child by a qualified professional is
a necessary starting place for parents.

As a rule, school districts are not
qualified to make medical diagnoses of disabled children. School districts
may perform educational testing to evaluate the child's skills, learning
style and other characteristics that make the child eligible for special
education services. However, even if an IEP team uses educational testing
and observation to determine that a particular child is autistic, this
is not the same as a medical diagnosis of autism.

Parents will naturally have concerns
about their child's disability that go beyond the school environment
and will turn to experts for guidance about these issues. This leads
to another reason why parents turn to experts - for advice about available
treatments.

Reason
II: To obtain advice for medical or therapeutic treatment of the disability

Once the parents understand that their
child has a particular disability, they naturally want to do whatever
they can to help the child learn and adapt to this condition. From a
medical perspective, it is accepted best practice for experts to advise
parents about the best medical and/or therapeutic remedies to help the
disabled child. Acceptable ways to treat a child's disability may include
medications, surgeries, and therapies.

The express goal of this advice is
to maximize the child's health, development and general welfare.

The parents and experts will select therapies
or interventions that are designed to bring the child as close as possible
to the development and skills the child would have if not disabled.
These may include consideration of or work towards:

an actual cure
of the child's condition - that is, any and all available treatments
which will actually reverse the condition or treatment so the child
no longer meets the medical diagnostic requirements for that condition
or disability; or,

a drastic improvement
in the child's condition - that is, any and all treatments which will
so improve the condition or disability that the effects on the child's
life are practically neutralized, even though the child may still technically
meet the medical diagnostic requirements for the condition or disability.

In addition, parents will request advice
from experts about support and education for themselves and other family
members affected by the child's disability. In other words, parents
need information and support from experts to help them cope with the
practical realities of their child's disability. One of these practical
realities are the experiences the disabled child and the parents have
with the school district.

Reason
III: To help develop an appropriate educational plan for the child

When considering how a child with a disability
relates in the school environment, parents need to understand the impact
of the disability on learning or negotiating the school premises. As
members of the IEP team, parents want to participate meaningfully in
planning their child's education. They will rely on their experts and
the school's experts to do so.

No parent wants to underestimate their
child's abilities and no parent wants to see their child struggle needlessly.
Finding that sweet spot of challenged independence is crucial for parents
- and usually their own experiences with their child's disability are
insufficient for them to fully understand what is appropriate
in school.

Please note the differences between what
is appropriate and what is best.

In all areas of the child's life outside
of school, parents will legitimately pursue the best remedies for their
child. This is the "therapeutic benefit" standard, and is
a natural and expected part of good parenting.

However, in the school environment, the
school district must only consider what is appropriate
for the child. This is the lesser "educational benefit" standard
required by IDEA. Generally, appropriate educational interventions and
services will provide the student with meaningful educational benefit,
but will not maximize the student's potential.

Congress and the courts are steadfast
in their refusal to require schools to do what is therapeutically or
educationally best for disabled children. Best is the
clear domain of families, not the legislatively mandated standard for
schools.

There is a legal difference between services
and interventions that provide a disabled student with educational
benefit, and those that provide therapeutic benefit.

Schools must only provide services and
interventions designed to improve the student's ability to learn at
school. Schools are not legally required to provide any intervention
or service solely to improve the child's medical or therapeutic
welfare.

This is a subtle distinction: a legal
hair that parents and school districts frequently must split. Common
sense dictates that educational benefits will have therapeutic windfalls,
and that therapeutic benefits will improve a child's performance at
school.

The time that all children - disabled
and not disabled - spend in school is crucial for them to reconcile
who they are within their communities. This is especially true for disabled
children who must reconcile the impact of their disabilities with the
expectations of modern communal life.

Nevertheless, the law is clear that schools
must accommodate only those disabilities that affect the child's ability
to function in and learn at school. Any impact that reaches beyond the
school experience is outside the scope of the school's responsibilities.

Experts are key in determining the nature
and extent of the disability's impact on learning or functioning in
school. However, experts must provide this input only to the extent
that it allows the child to participate in school as a disabled
child.

Unlike the standard in a medical or therapeutic
setting, there is no requirement that experts provide advice about how
to cure or drastically reduce the effects of the child's disability
in school. A child with autism must only have those accommodations that
will allow him to function meaningfully in school as a child with
autism. No matter how tempting it is to utilize therapeutic resources
at school for the purpose of improving the autism so it no longer medically
exists, or is so reduced as to appear non-existent, this is a clear
overreaching of the IEP process.

Yet, there is no express prohibition
of a child obtaining a therapeutic windfall from an educational benefit.
If a particular autistic child requires a particular educational program
(for example, Applied Behavior Analysis or ABA) in order to receive
an appropriate education, and that educational program has the added
benefit of removing that child from the autistic spectrum, Congress
and the courts will certainly have no objection.

One common problem that arises when parents
consult with experts to plan an educational program is that the parents
or the expert or both forget to apply the "educational benefit"
standard.

Assume parents take their child to a
child psychologist for an evaluation. The psychologist diagnoses the
child with Attention Deficit Hyperactivity Disorder (ADHD) and tells
the parents that the child "needs an aide" in school. When
the parents advise the school that the child needs an aide, the school
refuses to provide one.

How will a Hearing Officer decide if
the child is legally entitled to an aide?

The decision will depend on many factors
but one is most important: is the child able to learn without an aide?
If the expert, when recommending the aide, believes that the child likely
would be able to learn without an aide, but likely will learn more
with an aide (the "therapeutic benefit" standard),
it is unlikely that the Hearing Officer will award the aide.

If the expert testifies that the child
will not receive meaningful educational benefit without an aide (the
"educational benefit" standard) and has objective data to
support this opinion (the "educational benefit" standard),
the Hearing Officer is far more likely to award the aide.

Therefore, parents and the experts they
hire must remember that for educational purposes, the
expert's opinion should address:

how the disability affects
the child at school; and,

how services and interventions
can be delivered in the school environment to enable the child to
receive an appropriate education.

How
Should Parents Choose their Experts?

I.
Be clear about why you retained the expert

The most important factor for parents
to keep in mind is why they are consulting with an expert. This
is more easily accomplished if the expert is a school district employee.
All reports, tests and opinions completed by school district experts
will be for educational purposes.

Parents should never look to school district
experts for opinions about the ultimate medical or therapeutic conditions
of their disabled children. Not only are districts not required by law
to give medical or therapeutic advice: depending on state requirements
for practicing medicine, school district employees may be legally prohibited
from giving medical or therapeutic opinions.

Therefore, if an IEP team - based upon
school testing - determines that a child can receive the educational
label of autism as a qualifying condition under IDEA, this does
not mean that the district employees have medically diagnosed the
child with autism. In fact, it is more likely that without a medical
diagnosis of autism, a school team would be uncomfortable finding a
child eligible under the label of autism. To avoid the quagmire of practicing
medicine without a license, the team may find the child eligible under
"speech/language" or "other health impairment."

If parents do not have a solid medical
understanding of their child's disability, they are best served by finding
an appropriately licensed person to give current medical tests and evaluations
for this purpose. The parents should ask their pediatrician or family
doctor for references for such an opinion. These clinical evaluations
- whether physical or psychological - will comply with the "therapeutic
standard" explained above: that is, the practitioner and parent
will determine what cause of action is in the best interest of
the child.

If the parents already have a medical
or therapeutic diagnosis and need further testing and opinions about
how the disability will affect the child's performance in school, they
should secure an educational evaluation of the child. IDEA requires
school districts to conduct these evaluations, and in some circumstances,
even pay for outside evaluators to administer tests. The results of
this evaluation will be used to develop an appropriate educational
program for the child.

If parents have concerns about the methodology
or validity of tests conducted by school district personnel or clinical
professionals paid by the district, they are free under IDEA to obtain
independent evaluations at their own expense. Reports by independent
evaluators will become a part of their child's file and must be considered
by the IEP team.

When choosing an expert outside the district,
the parents should strive to find a professional who is truly objective.
In other words, it is crucial that the expert not have a personal interest
in the outcome of the evaluation. This is especially true if the parents
anticipate that the IEP team will view the evaluation results unfavorably.
Therefore, while it is expected that the expert will fundamentally support
the priorities identified by the parents, it is not fatal if the expert
disagrees with the parents on minor points. In fact, this demonstrates
that the expert is truthful, and is not just acting as a "hired
gun".

The expert's opinions and recommendations
should be written into a report that is easily understood by a layman
(in addition to conversations that the expert may have with IEP team
members), and should be supported by objective data about the child.
The report must be unambiguous about:

the expert's diagnosis
of the child's disabilities;

the child's need for
special education services;

specific services recommended
by the expert recommends, and,

why.

If the expert believes that the child
will not be able to learn without specific interventions, the expert
must state this in plain language. If the parents are not sure about
the strength of their expert's opinion, or whether this opinion relates
to a "therapeutic standard" or an "educational standard"
they should ask the expert to clarify the opinion.

In cases where the parents or advocate
expects the school district to contest the expert's opinion, all parties
must keep in mind that the expert is a potential witness and may be
expected to testify to their opinion under oath.

II.
Keep the expert's qualifications in mind

Although all properly licensed experts
are deemed competent to offer advice in their area of expertise, some
experts are "more qualified" than others. In other words,
certain licensing standards are more persuasive for educational or IEP
purposes.

If the expert's opinions and report will
be used for educational purposes (that is, to determine an appropriate
educational program for the child), an expert who has a background in
education, in addition to professional licensing, will usually make
a good witness.

For example, licensed clinical psychologists
can administer and score psychological tests on disabled children. Licensed
clinical psychologists can provide competent advice about how the test
results reflect the child's performance in school. If the clinical psychologist
is also a licensed school psychologist, this individual
may be especially persuasive when explaining to district personnel how
the test results should translate into an appropriate educational program
for the child. It will also be more difficult for the district to characterize
this expert's opinions as "therapeutic" advice, not "educational"
advice.

In
Summary

Although most parents are very knowledgeable
regarding the needs of their disabled children, they are encouraged
to get advice from qualified experts. Parents should to keep in mind
the purposes for which they are consulting the expert and what they
will need in a written report. This additional information will help
the parents plan effective medical, therapeutic and educational programs
for their disabled child.

When qualified experts provide insights
and reports that are useful to the child's IEP team, there is great
hope that the resulting educational program will be appropriate and
will meet the child's unique educational needs.

Ms. Bollero received her undergraduate degree from Northwestern University and her Juris Doctor degree from Loyola University of Chicago School of Law. She is a former member of the adjunct faculty at Elgin Community College Paralegal Program, and serves on the Professional Advisory Committee of the Autism Society of Illinois and the Illinois Attorney General's Special Committee on Special Education. Ms. Bollero is a former special education mediator for the Illinois State Board of Education. She has authored numerous articles on special education and has conducted a variety of seminars on school topics in Illinois and nationally. In her seminars, she teaches how to effectively, calmly, and productively navigate an I.E.P in a way that everyone "Plays well together". She brings years of personal as well as professional experience. She will show us how Playing Hearts Not Poker is in the best interest for our child.